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photocopy of will

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Recently I have been told that I am the heir to my fathers estate in california because he died without a will.

Now a family member wants to submit a photocopy of a will to court from 1987 that says my father leaves every thing to them and nothing to me. There is no original and all they have is a photocopy.

They sent a form to me to consent to admission of my fathers photocopy of will.

But i have not signed it. Can they submit it anyway?

If they submit the photocopy will— will the court accept a photocopy from 1987. What are the chances they will win.



Senior Member
DO NOT CONSENT UNLESS YOU REALLY DON'T CARE AND DON"T WANTY ANY MONEY. The person named as beneficiary in the photocopy of the old Will wants you to consent to admitting the copy to probate, because there is a very good chance that if you were to appear and object to the photocopy being accepted it never would be admitted to probate.

What the person with the photocopy has is the makings of a lost Will case. Each state has its own laws as to when a copy is acceptable if the original can not be found. Very often an old original can not be found is because the person made a later Will. Other times the person decided that he or she did not want the Will to take effect and just destroyed it, so that the estate would pass by the general laws governing intestate distribution -- as if there never had been any Will.

In California the Probate Code provides, at Section 6124: "If the testator's will was last in the testator's possession, the testator was competent until death, and neither the will nor a duplicate original of the will can be found after the testator's death, it is presumed that the testator destroyed the will with intent to revoke it. This presumption is a presumption affecting the burden of producing evidence."

Thus there is a presumption that if the Will was in your father's possession and he was at all times of sound mind, if it is lost your father wanted it destroyed. He would thus have died intestate and as his sole heir at law you would inherit everything.

Now if the facts show something different -- such as if the Will was in his house and the house was destroyed by the fire that killed him, then the beneficiaries named in the lost Will could present those facts in the probate proceeding and they would shift the burden back to you to prove it was more than an accident.

The reality is that matters like this are often settled, with some sharing of the estate between the claimant named in the "lost Will" and the heirs at law.

You should immediately retain an experienced lawyer who can evaluate all the facts and circumstances and if warranted properly and timely object to the photocopy. That alone should likely generate an offer from them to split things, because if they have to go to court and fight it costs them legal fees and takes time. But whether a fair split should be 10% to you and 90% to them, or 90% to you and 10% to them would vary considerably based on the facts and how the matter is likely to be resolved in court.

One key issue will be how serious both sides appear and how hard they are willing to fight. It may also depends on the amount of assets involved (if this is a $10 million estate they know a lot is at stake -- and thus there would be a lot to gain or lose), while if the estate is only $5,000 any legal bills will rapidly eat away the amount involved. But in evaluating the matter a lawyer will consider all the other facts and circumstances. These include how the "lost" Will was originally prepared (such as by hand, by a lawyer, using a form, etc.. What happened to the original. Was more than one "original" signed? What were the personal relationships involved and what happened since the date of preparation. For example if the named beneficiary was at the time a friend and there was a falling out, or he lost touch with them that could suggest that the Will was more likely to be intentitoanlly destroyed. Or if the deceased was estranged from his heirs at law and the deceased later established a warmer relationship with those heirs it increases the likelihood a court or jury would conclude the Will was intentionally destroyed.


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